Chan Industrial Pty Limited v Port Stephens Council

[2004] NSWLEC 650

Land and Environment Court

of New South Wales

CITATION:

Chan Industrial Pty Limited v Port Stephens Council and Anor [2004] NSWLEC 650

PARTIES:

APPLICANT
Chan Industrial Pty Limited

FIRST RESPONDENT
Port Stephens Council

SECOND RESPONDENT
Alan J Bealing

FILE NUMBER(S):

40066 of 2004

CORAM:

Cowdroy J

KEY ISSUES:

Question of Law :- whether the proposed development would have exceeded the height control contained in the Local Environmental Plan

LEGISLATION CITED:

Development Control Plan PSC1
Port Stephens Local Environmental Plan 2000, cl 19
State Environmental Planning Policy No. 1

CASES CITED:

Bonner-Smith v Kogarah Municipal Council, Watts C, NSWLEC, 22 August 2000, unreported;
Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404;
Pawmac (No 1) Pty Ltd v Corporation of the City of Adelaide [1998] SAERDC 539

DATES OF HEARING:

18/11/2004; 19/11/2004

EX TEMPORE
JUDGMENT DATE :

11/19/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr J. Ayling SC
Ms J. Jagot (Barrister)
SOLICITORS
Cleaves Mallik Gibbs

FIRST RESPONDENT
Mr J. Maston (Barrister)
Mr M. Seymour (Barrister)
SOLICITORS
Sparke Helmore

SECOND RESPONDENT
Dr R. Harper SC
SOLICITORS
Edmunds

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Cowdroy J

19 November 2004

40066 of 2004

CHAN INDUSTRIAL PTY LIMITED v PORT STEPHENS COUNCIL and ALAN J BEALING

Introduction

1 The parties have requested that the Court answer the following preliminary question of law arising in these proceedings namely:-

Would the completed building depicted in the plans at tab 55 in exhibit A have exceeded 15 m in height within the meaning of Port Stephens LEP 2000 cl 19(c) and the table thereto?

2 The relevant provision of the Port Stephens Local Environmental Plan 2000 (“the LEP”) contains the following:-

A person shall not erect a dwelling-house, dual occupancy housing or urban housing on land within a zone specified in the Table to this clause, unless:
…
(c) the height of the building does not exceed the maximum height identified for the relevant zone.
Table

Type of housing	Zone	Minimum site area per dwelling	Floor space ratio	Maximum height	Maximum height
Urban housing	2 (c)	150m2	0.8:1	15m	15 m


It is an agreed fact that the development the subject of these proceedings is contained in the 2(c) zone under the LEP.

3 The dictionary to the LEP defines “height” as follows:-

height , in relation to a building, means the maximum height of the building measured vertically from the natural ground level or the finished ground level of the completed building, whichever is the lower.

4 The applicant submits that the building comprising the development approved by the first respondent (“the council”) exceeds 15 metres. The applicant relies upon the plans for the development which show that the basement level of the building is at R.L 12.12 and the highest component is at R.L 27.42, being a difference of 15.30 metres. Alternatively the applicant relies upon the levels for the southern elevation. Such levels show that a portion of the finished surface immediately adjacent to the building and beside an air conditioning facility is at R.L 12.36. When compared to the overall height above at R.L 27.42 the difference is 15.06 metres.

5 The applicant submits that the literal interpretation of the definition of “height” contained in the LEP (“the definition”) requires the measurement of height to be taken from the lowest level of the finished building to the uppermost level. Applying such interpretation, the height limit is exceeded by 0.30 metres. Alternatively using the lowest finished surface outside the building of R.L. 12.36 the height limit is exceed by 0.06 metres.

6 The applicant relies upon the objectives of the 2(c) zone and the provisions of Development Control Plan PSC1 (“the DCP”) to support its interpretation that the measurement of height is intended to minimise site disturbance and cut and fill.

7 Accordingly the applicant submits that the council had no power to grant approval to the development in the absence of an objection being raised pursuant to cl 6 and cl 7 of State Environmental Planning Policy No. 1.

8 The council submits that the height should be measured from natural ground level as depicted on sheet 5 of the plans (R.L. 13.00) under the highest level part of the parapet to the top of the parapet (R.L. 27.42). Accordingly the maximum height of the building is 14.42 metres.

9 The council submits that cl 19(c) of the LEP must be interpreted in isolation and given a purposive meaning. It submits that the correct approach requires an appreciation of issues such as overshadowing, bulk, scale, privacy, and relationship to adjoining buildings. None of these issues are affected by the depth of the foundations or by an internal carpark which is not perceptible externally. The council submits that absurd results would follow if the applicant’s interpretation of the definition applied.

10 The council submits that the DCP cannot control the interpretation of the definition in the LEP. Further it was not adopted until after the commencement of operation of the LEP.

11 The council relies upon the decision of Watts C in Bonner-Smith v Kogarah Municipal Council (NSWLEC, 22 August 2000, unreported) in which the Commissioner interpreted a definition relating to height. The Court was also referred to a decision of Trenorden J in Pawmac (No 1) Pty Ltd v Corporation of the City of Adelaide [1998] SAERDC 539 in which Her Honour also interpreted a definition of height.

Findings

12 In Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at p 421 Mc Hugh J said:-

Where the text of the legislative provision which embodies the proposition
is grammatically capable of only one meaning and neither the context, the
purpose of the provision nor the general purpose of the Act throws any real
doubt on that meaning, the grammatical meaning must be taken as
representing Parliament's intention as to the meaning of the law

13 Clause 19(c) of the LEP and the definition are clear and unambiguous. The measurement of height is to be taken vertically, between either the natural ground level or the finished ground level of the building (whichever is the lower) and its maximum height. In this instance the calculation of height must be measured from the “finished ground level of the completed building”, being the floor of the basement car park since it is the lower of the levels depicted in the plans. Accordingly the correct level for the purpose of measurement required by the definition is the “finished ground level of the completed building”, not the natural ground level as it existed prior to the construction of the building. The word “ground” means no more than “the earth’s solid surface: firm or dry land”: see Macquarie Dictionary revised 3rd edition.

14 Whether such measurement is taken from inside or outside the building is immaterial, since the focus of the definition relates to the levels. The authorities relied upon by the council referred to above are not relevant because they relate to the interpretation of definitions which are fundamentally different to the definition contained in the LEP. The definition does not produce absurd results as submitted by the council. It can readily be applied to produce the intended consequence that the height of urban housing is to be restricted within the 2(c) zone to no greater than 15 metres from their lowest level to their uppermost level. It is immaterial that the finished ground level may be a basement or carpark. The definition is only directed to the completed building.

15 The finished ground level of the building is at R.L 12.12 and the highest level at the parapet is R.L. 27.42 and a vertical line can be drawn between them. Accordingly the height of the building, applying the definition is at least 15.30 metres. The plans do not show the depth of the slab beneath R.L. 12.12 to the surface of the ground.

16 It follows that the completed building referred to at tab 55 of exhibit A would have exceeded 15 metres in height within the meaning of the LEP.